Summary: Mrs X complained the Council delayed in finalising her daughter, D’s, Education Health and Care plan, and failed to ensure the provision in it was delivered. The Council was at fault for not issuing the final EHC plan within the statutory timescales and should apologise. The Council has carried out an annual review to check the provision in the plan was delivered.

The complaint

1. Mrs X complains the Council delayed in completing an Education Health and Care (EHC) plan for her daughter, D.
2. She also complains about poor communication, failure to respond to her requests for information and action, and a failure of all professionals to work sufficiently closely together.
3. Mrs X says the Council failed to adhere to the proper process, by not including in the EHC plan all the reports Mrs X wanted including. She also says the support set out in the plan was not specific and measurable.
4. Mrs X complains the provision in the EHC plan has not been consistently delivered and, in particular, the school has not given her sufficient information about the support given and D’s attainment.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
8. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
9. We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
10. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

12. I considered the:
• information provided by Mrs X;
• information provided by the Council in response to my enquiries;
• law and guidance, as set out below.
13. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making the final decision.

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What I found

Law and Guidance

14. A child with special educational needs may have an Education, Health and Care (EHC) plan.
15. The purpose of an EHC plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC plan is needed and for preparing the EHC plan. The EHC plan should set out the specific support that is to be provided. It will usually name either a specific school or a type of school that can meet the child’s needs.
16. The statutory guidance says the EHC plan must be completed within 20 weeks of the request for an assessment. When a child is transferring from primary to secondary school plans should be reviewed and amended in sufficient time to consider support for the transition and, where appropriate, the commissioning of support at the new school.
17. If a parent is unhappy with the content of the EHC plan they can appeal to the Special Educational Needs and Disability (SEND) tribunal.
18. The EHC plan will usually be reviewed annually. The review is carried out in partnership with the parents and the child’s school. The council must also decide whether the EHC plan needs amending or not. It should write to the parents setting out its decision and its reasons. It should tell them they have a right of appeal to the SEND tribunal.
19. If the council decides to issue an amended EHC plan it should do this within 8 weeks. There is a new right of appeal at this point.
20. The council is responsible for making sure that arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process. Most councils use the annual review to check the provision in the plan is being delivered by the school. Parents can request an early review if they have concerns about this or if the child’s needs have changed.

What happened

Background

21. Mrs X asked the Council for an EHC assessment in December 2015. The Council considered the request and decided not to assess D in January 2016. Mrs X appealed to the tribunal. In October 2016, the Tribunal ordered the Council to carry out an assessment. Since there was no obvious delay in the Council reaching a decision, I have not investigated its actions at this stage.
22. The Council assessed D, and its panel decided in January 2017 not to issue an EHC plan. Mrs X lodged a further appeal. There was no obvious delay in carrying out the assessment, therefore I have not considered the Council’s actions in detail during this period.
23. In late March 2017 the Council agreed to issue D an EHC plan. I exercised discretion to start investigating from this point, which is just over a year before Mrs X complained to us.
24. The final EHC plan was issued on 3 July 2017. Mrs X appealed because she was unhappy with the support set out in the plan. However, she confirmed the Council did follow the correct process from this point. An updated plan was issued in May 2018 after agreement was reached between the parties. I have not considered Mrs X’s concerns about the specific provision set out in the EHC plan since these were the subject of the appeal to the tribunal.

Delay in issuing the EHC plan

25. The Council consulted with relevant professionals in late 2016, and obtained reports from an educational psychologist, D’s primary school (school 1), health and social care. It agreed to issue an EHC plan in late March 2017 and issued a draft plan in early April. By this time, it was also necessary to consult with the secondary school (school 2) D was due to transfer to in September 2017. I have seen the daily records, which show it consulted with the school 2 in May, and obtained costings for the proposed support and information about transition plans. It also held a co-production meeting that Mrs X attended. By the end of May 2017 it had issued two further draft plans.
26. At this point Mrs X was unhappy the Council had not included certain reports:
• an OT report dated October 2015;
• a speech and language assessment;
• a cardiology report; and
• an update from the community paediatrician.

Mrs X says this was important because the reports evidence the child’s needs and this is the basis for deciding what support should be provided.

27. The Council had an undated OT report and asked Mrs X if it was the one she was referring to. Mrs X did not clarify this but the Council agreed to include the report. Mrs X says it did not do so. There was no speech and language assessment because D had been discharged from the service, so the latest information was the discharge report. There was only a letter from cardiology as this was a potential health issue that had only just been identified. The Council obtained the letter from school 1 and included it with the EHC plan. It is not clear what further update Mrs X wanted from the community paediatrician. The Council offered to meet Mrs X to discuss her concerns about the reports but she refused. She asked the Council to issue the final EHC plan so she could appeal.
28. The Council issued the final EHC plan on 3 July 2017. In response, Mrs X said in addition to the issues about reports she had previously raised, she was not satisfied with the transition planning for D and was unhappy the Council had not asked for more assessments.
29. Mrs X appealed. The tribunal adjourned the hearing in November 2017 because it was unclear what changes the parents wanted. Following this hearing the Council consulted them over a “working document”, which resulted in an amended EHC plan being issued in May 2018 without the need for a full hearing.
30. Mrs X says the Council’s delay meant D lost out on support for her transition to secondary school.

My findings – delay in issuing final EHC plan

31. Councils have 20 weeks from the date an assessment is requested to issue a final EHC plan. However, where, as in this case, there is an appeal to the tribunal the “clock” may stop whilst the tribunal considers the case and then “restart”. In this case, the Council initially decided not to carry out an assessment. I consider the clock stopped at that point and restarted when the tribunal ordered the Council to carry out an assessment in October 2016. Eight weeks later the Council decided not to issue an EHC plan because it said the school could meet D’s needs with its usual resources. The clock stopped again here. Mrs X appealed and the Council agreed in late March 2017 that it would issue a plan. It issued a final plan on 3 July 2017, thirteen weeks later. Therefore, the total time for issuing the plan, excluding the appeal periods, was twenty five weeks.
32. The Council accepts it did not issue a final EHC plan within the statutory timescales. This was fault. That said, my review of the records shows some of the delay was because it tried to reach an agreement with Mrs X about the content of the EHC plan to avoid the need for a further appeal. In June 2017 it offered a meeting to resolve the outstanding issues but Mrs X asked it to issue the final plan so she could appeal. There is no evidence the Council dragged its feet or tried to delay making provision for D.
33. Mrs X says because the Council had not included all the reports she wanted, the plan did not set out all the support she felt D needed. Mrs X appealed to the SEND tribunal about the provision set out in the plan so I cannot consider this further. I cannot make separate findings about the including or not of expert reports because this is too closely linked to the tribunal case.
34. The records show D had five additional visits to the secondary school. A key worker was allocated who met D both at her primary school and at the secondary. Arrangements were made to “meet and greet” D on arrival at school and an “emotional check in”. I am satisfied the Council did ensure D had transition support.
35. Mrs X says D did not have a detailed support plan nor was spelling support in place from September 2017. I will consider these aspects further below under the heading delivery of the provision in the EHC plan.

Communication and process issues

36. Mrs X says Council officers called her at school run times when they knew or should have known she was not available. In my review of the records I have identified one occasion where this happened and the officer apologised.
37. Mrs X also says the Council failed to respond to requests for information and action. She mentions that she was not always provided with reports and other documents in advance of meetings. She also says she was not given sufficient information about the purpose of some meetings. For example, she complained she was not told who would be attending the co-production meeting in May 2017 and had not understood its purpose. The officer apologised that she felt overwhelmed at the meeting, confirmed that a health officer had been invited but was on leave, and explained the secondary school needed to be consulted because D moved to secondary school in September when the plan was in place. The draft EHC plan was issued a few days before and the purpose of the meeting was to go through it in detail.
38. Mrs X says the Council did not request all the assessments she wanted and did not include all the reports she felt should be included in the appendices to the plan. She says professionals did not work sufficiently closely, which meant she had to keep providing the same information to different professionals. She also complains the school lost a health report and she was not told about this for five months.

Findings – communication and process issues

39. My review of the Council’s records shows it tried very hard to answer Mrs X’s many emails and to clarify which reports she wanted included in the plan. It did not arrange for all the assessments Mrs X wanted but it did not affect the outcome since the provision was subsequently agreed without the need for more assessments.
40. I have not found evidence the Council failed to work sufficiently closely with other professionals, although I see that Mrs X often raised the same issues with the school and the Council. This seemed to be an issue of trust rather than because they had failed to communicate with each other. Mrs X told the Council about the missing school health plan in June 2017. It immediately established that school 2 was responsible for the plan and asked it to produce an up-to-date plan so the information in the EHC plan could be updated.
41. In summary, I have not found evidence the Council failed to communicate properly or share appropriate information. The Council did include the reports Mrs X wanted included that were already available. The Council was not responsible for the school health plan and took appropriate action once alerted to the problem.
42. I am making no findings about whether the Council should have asked for further reports nor about the specific provision set out in the plan. This is because those issues were part of the appeal to the tribunal.

Delivery of the provision in the EHC plan

43. Mrs X complains the provision in the EHC plan issued in July 2017 was not consistently delivered. Some of the support set out in the EHC plan is difficult to measure. Mrs X says one of the reasons for the appeal to the SEND Tribunal was that the provision was not SMART. For example, various strategies are encouraged to help D’s working memory and learning but these are not specific activities that are delivered for a set amount of time each week.
44. The plan states the school should offer an alternative activity if D feels an activity may cause her injury or anxiety. Mrs X says an alternative is not always offered. On one occasion D was asked to do hurdles in PE and no alternative activity was offered.
45. Mrs X does not think the school has done enough to celebrate D’s progress so she can develop a more positive view of herself.
46. Mrs X does not think the school has given her sufficient information about exactly how it is supporting D so she can be confident it is giving D the best and most appropriate support. In particular, she says the school has not given her accurate and timely information about D’s attainment.
47. Mrs X says the school has not provided spelling support as set out in the EHC plan and that between September 2017 and May 2018 the school argued this was not needed. She says as a result of the failure to provide this, D has fallen further behind with spelling compared to her peers. The plan does not specify what the spelling support should look like. It is included in a broader outcome that also includes reading and writing support, for which the plan says there should be three 20 minute sessions each week.
48. The Council said it would expect the school to let it know if it was not able to deliver the provision set out in the Plan. It also said it would carry out an early review if parents or the school requested this. It ensures the provision in EHC plans is delivered through its annual review process. It provided documentation about the annual review that took place in July 2019. The Council asked an education psychologist to prepare an updated report. She consulted with D, her parents and the school as well as considering D’s educational progress since the earlier report. The report shows Mrs X was unhappy with the information she was receiving from the school and did not feel confident it was delivering the best and most appropriate support. However, it is clear that D was making good progress. The school reported that in some cases D was reluctant to accept individual support that was offered because she did not want to be seen as different from other students. The educational psychologist made recommendations for changes to the EHC plan and these were discussed at the annual review meeting.
49. Following the review meeting the Council agreed to update the EHC plan and issued a proposed amended plan. At the time it replied to my enquiries Mrs X was still considering this and had asked for a further meeting to discuss it, which the Council was arranging.

My findings – delivery of the provision in the EHC plan

50. The Council has carried out an annual review and consulted appropriately as part of that process. It agreed to amend the EHC plan and is seeking Mrs X’s agreement to those amendments. If Mrs X is unhappy with the final version of the updated EHC plan she will have the right to appeal to the tribunal.
51. Although Mrs X is not satisfied the provision in the plan has been consistently delivered, the evidence suggests the school has worked hard to deliver the provision. Mrs X says spelling and working memory support have not been provided but the precise support in these areas were not clearly set out in the July 2017 plan. Therefore, I cannot say precisely what should have been provided. As mentioned before, this was a key part of the appeal to the SEND tribunal. I am satisfied the Council took sufficient steps to ensure the provision was delivered and was not at fault.
52. What does appear to be an issue is the quantity and quality of information the school provides to Mrs X, particularly in relation to D’s attainment. There appears to have been inaccuracies in some of the information provided, which has led to Mrs X feeling a lack of confidence in the school. That said, there does not appear to be significant concerns about D’s attainment that would suggest she is not receiving the support she needs.

Agreed action

53. The Council will, within one month of the date of the final decision, apologise to Mrs X for the failure to issue a final EHC plan within the statutory timescales.
54. The Council has already made changes to its structure and staffing to ensure that in future the statutory timescales are met so no further recommendations are appropriate.

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Final decision

55. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman